REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 349 OF 2006
Voluntary Health Association ... Petitioner(s)
of Punjab
Versus
Union of India and Others ... Respondent(s)
WITH
WRIT PETITION (CIVIL) NO. 575 OF 2014
J U D G M E N T
Dipak Misra, J.
The two writ petitions being inter-connected in certain aspects were
heard together and are disposed of by the singular order. We shall first
deal with the grievance agitated in Writ Petition (Civil) No. 349 of 2006
and thereafter advert to what has been asserted in the other writ petition.
Be it stated immediately that the issues raised in Writ Petition (Civil)
No. 349 of 2006 are not agitated for the first time, for they had been
raised on earlier occasions and dealt with serious concern and solemn
sincerity. It is because they relate to the very core of existence of a
civilized society, pertain to the progress of the human race, and expose
the maladroit efforts to throttle the right of a life to feel the mother
earth and smell its fragrance. And, if we allow ourselves to say, the
issues have been highlighted with sincere rhetorics and balanced hyperboles
and ring the alarm of destruction of humanity in the long run. It is not a
group prophecy, but a significant collective predication. The involvement
of all is obvious, and it has to be. The heart of the issue that is
zealously projected by the petitioner is the increase of female foeticide,
resultant imbalance of sex ratio and the indifference in the implementation
of the stringent law that is in force. In essence, the fulcrum of the
anguished grievance lays stress on the non-implementation of the provisions
of The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of
Sex Selection) Act, 1994 (for brevity “the Act”) and The Pre-conception and
Pre-natal Diagnostic Techniques (Prohibition of Sex
Selection) Rules, 1996 (for short “the Rules”) framed under the Act by the
competent authorities who are obliged to do so.
2. The grievance has a narrative, and it needs to be stated.
3. Realising the rise of pre-natal diagnostic centres in urban areas of
the country using pre-natal diagnostic techniques for determination of sex
of the foetus and that the said centres had become very popular and had
tremendous growth, as the female child is not welcomed with open arms in
many Indian families and the consequence that such centres became centres
for female foeticide which affected the dignity and status of women, the
Parliament brought in the legislation to regulate the use of such
techniques and to provide punishment for such inhuman act. The objects and
reasons of the Act stated unequivocally that it was meant to prohibit the
misuse of pre-natal diagnostic techniques for determination of sex of the
foetus, leading to female foeticide; to prohibit advertisement of pre-natal
diagnostic techniques for detection or determination of sex; to permit and
regulate the use of pre-natal diagnostic techniques for the purpose of
detection of specific genetic abnormalities or disorders; to permit the use
of such techniques only under certain conditions by the registered
institutions; and to punish for violation of the provisions of the proposed
legislation. The Preamble of the Act provides for the prohibition of sex
selection before or after conception, and for regulation of pre-natal
diagnostic techniques for the purposes of detecting genetic abnormalities
or metabolic disorders or chromosomal abnormalities or certain congenital
malformations or sex-linked disorders and for the prevention of their
misuse for sex determination leading to female foeticide and for matters
connected therewith or incidental thereto. Be it noted when the Act came
into force, it was named as the Pre-natal Diagnostic Techniques (Regulation
and Prevention of Misuse) Act, 1994 and after the amendments in 2001 and
2003, in the present incarnation, it is called The Pre-conception and Pre-
natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.
4. As the violence and cruelty meted out to women gradually got revealed
due to rights and protections prescribed under various legislations, the
Court perceived the magnitude of the crime. Such a situation compelled
this Court, in Ajit Savant Majagvai v. State of Karnataka[1], while
dealing with the physical violence, torture, mental cruelty and murder of
the female particularly the wife, to comment on the degeneration of
relationship and the prevalent atmosphere by observing that:-
“3. Social thinkers, philosophers, dramatists, poets and writers have
eulogised the female species of the human race and have always used
beautiful epithets to describe her temperament and personality and have not
deviated from that path even while speaking of her odd behaviour, at times.
Even in sarcasm, they have not crossed the literary limit and have adhered
to a particular standard of nobility of language. Even when a member of her
own species, Madame De Stael, remarked “I am glad that I am not a man; for
then I should have to marry a woman”, there was wit in it. When Shakespeare
wrote, “Age cannot wither her; nor custom stale, her infinite variety”,
there again was wit. Notwithstanding that these writers have cried hoarse
for respect for “woman”, notwithstanding that Schiller said “Honour women!
They entwine and weave heavenly roses in our earthly life” and
notwithstanding that the Mahabharata mentioned her as the source of
salvation, crime against “woman” continues to rise and has, today
undoubtedly, risen to alarming proportions.
4. It is unfortunate that in an age where people are described as
civilised, crime against “female” is committed even when the child is in
the womb as the “female” foetus is often destroyed to prevent the birth of
a female child. If that child comes into existence, she starts her life as
a daughter, then becomes a wife and in due course, a mother. She rocks the
cradle to rear up her infant, bestows all her love on the child and as the
child grows in age, she gives to the child all that she has in her own
personality. She shapes the destiny and character of the child. To be cruel
to such a creature is unthinkable.”
[Emphasis added]
5. We may repeat, the aforestated observation though made totally in a
different context but nonetheless, it seemly stated the marrow of the
problem. Needless to emphasise, the predicament with regard to female
foeticide by misuse of modern science and technology has aggravated and
enormously affected the sex ratio. To eradicate the malady, the Parliament,
as stated earlier, had enacted the Act. In the first year of this century,
a petition under Article 32 was moved for issuing directions to implement
the provisions of the said Act by (a) appointing appropriate authorities at
State and district levels and the Advisory Committees; (b) issuing
direction to the Central Government to ensure that the Central Supervisory
Board meets every 6 months as provided under the PNDT Act; and for banning
of all advertisements of prenatal sex selection including all other sex-
determination techniques which can be abused to selectively produce only
boys either before or during pregnancy. A two-Judge bench in Center for
Enquiry into Health & Allied Themes (CEHAT) and others v. Union of India
and others[2] and Center for Enquiry into Health & Allied Themes (CEHAT)
and others v. Union of India and others[3] on 04.05.2001 issued certain
directions. Apart from the directions contained in the said orders, the
Court, while finally disposing of the writ petition, issued the following
directions:-
“(a) For effective implementation of the Act, information should be
published by way of advertisements as well as on electronic media. This
process should be continued till there is awareness in the public that
there should not be any discrimination between male and female child.
(b) Quarterly reports by the appropriate authority, which are submitted to
the Supervisory Board should be consolidated and published annually for
information of the public at large.
(c) Appropriate authorities shall maintain the records of all the meetings
of the Advisory Committees.
(d) The National Inspection and Monitoring Committee constituted by the
Central Government for conducting periodic inspection shall continue to
function till the Act is effectively implemented. The reports of this
Committee be placed before the Central Supervisory Board and State
Supervisory Boards for any further action.
(e) As provided under Rule 17(3), the public would have access to the
records maintained by different bodies constituted under the Act.
(f) The Central Supervisory Board would ensure that the following States
appoint the State Supervisory Boards as per the requirement of Section 16-
A: 1. Delhi, 2. Himachal Pradesh, 3. Tamil Nadu, 4. Tripura, and 5. Uttar
Pradesh.
(g) As per the requirement of Section 17(3)(a), the Central Supervisory
Board would ensure that the following States appoint the multi-member
appropriate authorities: 1. Jharkhand, 2. Maharashtra, 3. Tripura, 4. Tamil
Nadu, and 5. Uttar Pradesh. It will be open to the parties to approach this
Court in case of any difficulty in implementing the aforesaid directions”.
6. Despite the directions issued by the Court, there had not been proper
implementation and that compelled the present petitioner, namely, Voluntary
Health Association of Punjab to file the present Writ Petition seeking
various directions. The Court on 08.01.2013 took note of the fact that
the provisions had not been adequately implemented by the various States
and Union Territories and accordingly directed for personal appearance of
the Health Secretaries of the States of Punjab, Haryana, NCT of Delhi,
Rajasthan, Uttar Pradesh, Bihar and Maharashtra, to examine what steps they
had taken for the proper and effective implementation of the provisions of
the Act as well as the various directions issued by this Court.
7. At a later stage, a reference was made to 2011 Census of India to
highlight there had been a sharp decline in the female sex ratio in many
States. It was also observed that there had been no effective supervision
or follow-up action so as to achieve the object and purpose of the Act. It
was observed that mushrooming of various sonography centres, genetic
clinics, genetic counselling centres, genetic laboratories, ultrasonic
clinics, imaging centres in almost all parts of the country called for more
vigil and attention by the authorities under the Act. The Court also found
that their functioning was not being properly monitored or supervised by
the authorities under the Act or to find out whether they are misusing the
pre-natal diagnostic techniques for determination of sex of foetus leading
to foeticide.
8. A reference was made to various facets of the Act and the Rules and
ultimately the Court in Voluntary Health Association of Punjab v. Union of
India and others[4] issued the following directions:-
“9.1. The Central Supervisory Board and the State and Union Territories
Supervisory Boards, constituted under Sections 7 and 16-A of PN & PNDT Act,
would meet at least once in six months, so as to supervise and oversee how
effective is the implementation of the PN & PNDT Act.
9.2. The State Advisory Committees and District Advisory Committees should
gather information relating to the breach of the provisions of the PN &
PNDT Act and the Rules and take steps to seize records, seal machines and
institute legal proceedings, if they notice violation of the provisions of
the PN & PNDT Act.
9.3. The committees mentioned above should report the details of the
charges framed and the conviction of the persons who have committed the
offence, to the State Medical Councils for proper action, including
suspension of the registration of the unit and cancellation of licence to
practice.
9.4. The authorities should ensure also that all genetic counselling
centres, genetic laboratories and genetic clinics, infertility clinics,
scan centres, etc. using pre-conception and pre-natal diagnostic techniques
and procedures should maintain all records and all forms, required to be
maintained under the Act and the Rules and the duplicate copies of the same
be sent to the district authorities concerned, in accordance with Rule 9(8)
of the Rules.
9.5. States and District Advisory Boards should ensure that all
manufacturers and sellers of ultrasonography machines do not sell any
machine to any unregistered centre, as provided under Rule 3-A and
disclose, on a quarterly basis, to the State/Union Territory concerned and
the Central Government, a list of persons to whom the machines have been
sold, in accordance with Rule 3-A(2) of the Rules.
9.6. There will be a direction to all genetic counselling centres, genetic
laboratories, clinics, etc. to maintain Forms A, E, H and other statutory
forms provided under the Rules and if these forms are not properly
maintained, appropriate action should be taken by the authorities
concerned.
9.7. Steps should also be taken by the State Government and the authorities
under the Act for mapping of all registered and unregistered
ultrasonography clinics, in three months’ time.
9.8. Steps should be taken by the State Governments and the Union
Territories to educate the people of the necessity of implementing the
provisions of the Act by conducting workshops as well as awareness camps at
the State and district levels.
9.9. Special cell be constituted by the State Governments and the Union
Territories to monitor the progress of various cases pending in the courts
under the Act and take steps for their early disposal.
9.10. The authorities concerned should take steps to seize the machines
which have been used illegally and contrary to the provisions of the Act
and the Rules thereunder and the seized machines can also be confiscated
under the provisions of the Code of Criminal Procedure and be sold, in
accordance with law.
9.11. The various courts in this country should take steps to dispose of
all pending cases under the Act, within a period of six months. Communicate
this order to the Registrars of various High Courts, who will take
appropriate follow-up action with due intimation to the courts concerned.”
A further direction was given to file the Status Report within a period of
three months. It is apt to note here that in the concurring opinion Dipak
Misra, J. only highlighted certain aspects that pertained to direction
contained in paragraph 9.8.
9. We may profitably reproduce certain passages from the concurring
opinion:-
“14. Female foeticide has its roots in the social thinking which is
fundamentally based on certain erroneous notions, egocentric traditions,
perverted perception of societal norms and obsession with ideas which are
totally individualistic sans the collective good. All involved in female
foeticide deliberately forget to realise that when the foetus of a girl
child is destroyed, a woman of the future is crucified. To put it
differently, the present generation invites the sufferings on its own and
also sows the seeds of suffering for the future generation, as in the
ultimate eventuate, the sex ratio gets affected and leads to manifold
social problems. I may hasten to add that no awareness campaign can ever be
complete unless there is real focus on the prowess of women and the need
for women empowerment.
x x x x x
19. A woman has to be regarded as an equal partner in the life of a man. It
has to be borne in mind that she has also the equal role in the society
i.e. thinking, participating and leadership.
x x x x x
21. When a female foeticide takes place, every woman who mothers the child
must remember that she is killing her own child despite being a mother.
That is what abortion would mean in social terms. Abortion of a female
child in its conceptual eventuality leads to killing of a woman. Law
prohibits it; scriptures forbid it; philosophy condemns it; ethics
deprecate it, morality decries it and social science abhors it. Henrik
Ibsen emphasised on the individualism of woman. John Milton treated her to
be the best of all God’s work. In this context, it will be appropriate to
quote a few lines from Democracy in America by Alexis de Tocqueville:
“If I were asked … to what the singular prosperity and growing strength of
that people [Americans] ought mainly to be attributed, I should reply: To
the superiority of their women.”
x x x x x
32. A cosmetic awareness campaign would never subserve the purpose. The
authorities of the Government, the non-governmental organisations and other
volunteers are required to remember that there has to be awareness camps
which are really effective. The people involved with the same must take it
up as a service, a crusade. They must understand and accept that it is an
art as well as a science and not simple arithmetic. It cannot take the
colour of a routine speech. The awareness camps should not be founded on
the theory of Euclidian geometry. It must engulf the concept of social
vigilance with an analytical mind and radiate into the marrows of the
society. If awareness campaigns are not appositely conducted, the needed
guidance for the people would be without meaning and things shall fall
apart and everyone would try to take shelter in cynical escapism.
33. It is difficult to precisely state how an awareness camp is to be
conducted. It will depend upon what kind and strata of people are being
addressed to. The persons involved in such awareness campaign are required
to equip themselves with constitutional concepts, culture, philosophy,
religion, scriptural commands and injunctions, the mandate of the law as
engrafted under the Act and above all the development of modern science. It
needs no special emphasis to state that in awareness camps while the
deterrent facets of law are required to be accentuated upon, simultaneously
the desirability of law to be followed with spiritual obeisance, regard
being had to the purpose of the Act, has to be stressed upon. The seemly
synchronisation shall bring the required effect. That apart, documentary
films can be shown to highlight the need; and instil the idea in the mind
of the public at large, for when the mind becomes strong, mountains do
melt.
34. The people involved in the awareness campaigns should have boldness and
courage. There should not be any iota of confusion or perplexity in their
thought or action. They should treat it as a problem and think that a
problem has to be understood in a proper manner to afford a solution. They
should bear in mind that they are required to change the mindset of the
people, the grammar of the society and unacceptable beliefs inherent in the
populace.”
10. As directed in the judgment, the matter was listed and certain
clarifications were sought for by the Union of India with regard to the
directions vide direction Nos. 2, 3, 4 and 6 pointing out that the
authorities mentioned in direction No. 2 should also include appropriate
authority under Section 17 and Section 17A of the Act. With regard to
direction No. 6, it was submitted that instead of Forms A, E and H, Forms
A, D, F, G & H be substituted. The said prayers were allowed and the
States were directed to file their respective status report.
11. On 16.9.2014 the Court took note of the directions already issued and
proceeded to deal with I.A. No. 11 of 2013 and recorded the submission of
Mr. Sanjay Parikh, learned counsel that the Union of India has to animate
itself in an appropriate manner to see that the sex ratio is maintained and
does not reduce further. It was also urged by him that the Central
Supervision Committee which is required to meet to take stock of the
situation and the National Monitoring Committee who is required to monitor
the activities, had failed in their duties.
12. Mr. Parikh had also drawn the attention of the Court to the proviso
to Section 4(3) of the Act which reads as follows:-
“4. Regulation of pre-natal diagnostic techniques.-- On and from the
commencement of this Act,-- (1) … (2) … (3) …
Provided that the person conducting ultrasonography on a pregnant woman
shall keep complete record thereof in the clinic in such manner, as may be
prescribed, and any deficiency or inaccuracy found therein shall amount to
contravention of the provisions of section 5 and section 6 unless contrary
is proved by the person conducting such ultrasonography.”
13. It was propounded by him that the concerned authorities have not
acted in accordance with the aforesaid provision in all seriousness as a
result of which the nation has faced the disaster of female foeticide. On
that day, Mr. Colin Gonsalves, learned senior counsel appearing
for the writ petitioner had drawn our attention to the affidavit filed by
the petitioner contending, inter alia, that the sex ratio in most of the
States had decreased and in certain States, there had been a minor
increase, but the same is not likely to subserve the aims and objects of
the Act. After referring to the history of this litigation which has been
continuing in this Court since long, he had submitted that certain
directions are required to be issued.
14. The Union of India was directed to file an affidavit of the
Additional Secretary of Health and/or any other concerned Additional
Secretary clearly stating what steps had been taken and on the basis of the
steps taken, what results have been achieved. It was also directed that
all the States shall file their responses through the concerned Health
Secretaries. The direction further contained that the affidavits shall be
comprehensive and must reflect sincerity and responsibility.
15. On 25.11.2014 the Court noted that affidavits by certain States had
been filed and certain States, namely, Assam, Arunachal Pradesh, Bihar,
Goa, Gujarat, Kerala, Madhya Pradesh, Meghalaya, Mizoram, Odisha, Tripura,
and UT of Daman and Nagar Haveli and Puducherry had not filed the
affidavits. Two weeks time was granted to file the necessary affidavits.
At that juncture, it was thought appropriate to advert to the States by
dividing them into certain clusters. It was decided to deal with the
situation pertaining to the States of Uttar Pradesh, Haryana and NCT of
Delhi first. The affidavit filed by the State of Uttar Pradesh was
considered and in that context it was observed that the census conducted in
2011 cannot be the guideline for the purposes of PC-PNDT Act. It was felt
that a different methodology was required to be adopted by the State.
Paragraph 28 of the affidavit, which is of significance, is extracted
below:-
“28. That it is pertinent to mention herein that according to “ANNUAL
HEALTH SURVEY (AHS)” for the year 2010-11, 2011-12 and 2012-13, improvement
has been revealed in the State in respect of Sex Ratio At Birth, Sex Ratio
of Child (0 to 04 years age) and Sex Ratio in all age group, which is clear
with the table given below:
|Year of |Sex Ratio |Sex Ratio |Sex Ratio |
|Annual |(at birth) |(0 to 4 |(In all |
|Health | |years of |ages) |
|Survey | | | |
|2010-11 |904 |913 |943 |
|2011-12 |908 |914 |944 |
|2012-13 |921 |919 |946 |
It is necessary to mention here that on a query being made by the
Court, learned counsel for the State was not in a position to explain on
what basis the said figures had been arrived at, for the same was not
reflectible from the assertions made in the affidavit.
16. As far as the State of Haryana is concerned, the chart given in
paragraph 15 of the affidavit indicated district-wise and month-wise sex
ratio of births during the year 2014. It is as follows:-
|“District wise and month wise Sex Ratio at Birth during year|
|2014 in Haryana State as per CRS (Prov) |
|Sr. |District |Up to |Up to |Up to|Up to|Up to|Up to |
|No | |Jan.14 |Feb.14 |Mar |April|May |June |
| | | | |14 |14 |14 |14 |
|1 |Ambala |1012 |993 |959 |939 |913 |910 |
|2 |Bhiwani |824 |812 |843 |848 |846 |832 |
|3 |Faridabad |929 |892 |889 |884 |890 |890 |
|4 |Fatehabad |859 |898 |890 |888 |886 |874 |
|5 |Gurgaon |829 |856 |851 |854 |855 |839 |
|6 |Hissar |892 |872 |883 |878 |885 |880 |
|7 |Jhajjar |797 |793 |793 |801 |800 |811 |
|8 |Jind |886 |876 |878 |911 |915 |899 |
|9 |Kaithal |953 |921 |920 |928 |927 |918 |
|10 |Karnal |911 |899 |888 |881 |889 |894 |
|11 |Kurukshetra |956 |904 |900 |892 |890 |888 |
|12 |Mewat |920 |942 |932 |923 |920 |919 |
|13 |Mohindergarh |777 |776 |797 |786 |782 |770 |
|14 |Palwal |867 |871 |871 |871 |876 |875 |
|15 |Panchkula |853 |837 |860 |914 |902 |914 |
|16 |Panpat |924 |931 |915 |904 |903 |895 |
|17 |Rewari |856 |850 |849 |822 |816 |806 |
|18 |Rohtak |894 |884 |865 |863 |859 |889 |
|19 |Sirsa |897 |872 |879 |885 |892 |886 |
|20 |Sonepat |859 |884 |850 |838 |834 |835 |
|21 |Yamuna naga |903 |940 |916 |897 |894 |869 |
| |Haryana State |889 |884 |881 |878 |878 |874” |
Nothing had been filed stating as to how the aforesaid figures had
been reached except making a statement that the figures were arrived at on
the basis of entry in certain registers.
17. On a perusal of the affidavit by the NCT of Delhi, it was noted that
in paragraph 5, it had been stated, thus:-
“5. It is submitted that Sex Ratio at Birth in Delhi, which is a reliable
indicator of violations under the PC & PNDT Act, has improved by 9 points
in 2013 over the previous year. The data available from Civil Registration
System indicates that Sex Ratio at Birth was 809 females per 1000 males in
the year 2001 and it is currently at 895 in 2013 Annexure R-I.”
18. At that stage, the Court felt the need for verification of the
documents that formed the basis on which these figures had been reached.
It was also clarified that the figures that had been put forth did not show
much indication of improvement but it was necessary to verify whether the
figures that had been set forth was correct or not. The purpose was to find
out whether there was degradation of sex ratio or stagnation or any steps
had really been taken by the concerned States to improve/enhance the sex
ratio or not; and accordingly it was directed that a meeting be held under
the auspices of National Inspection and Monitoring Committee wherein the
Additional Secretary who had filed the affidavit for the Union of India and
two other Joint Secretaries of the Ministry of Health and Family Welfare
shall remain present. The deponents who had filed the affidavits before
this Court on behalf of the State of Uttar Pradesh and NCT of Delhi were
directed to remain present. The Director General, Health Services, State of
Haryana and the Principal Secretary along with the Special Secretary, State
of Uttar Pradesh were also directed to remain present in the meeting and to
produce the relevant registers/records before the said Committee on the
date fixed. Mr. Gonsalves, learned senior counsel for the petitioner and
Mr. Parikh, learned counsel for the impleaded respondent(s) were allowed to
be present. The report was required to be filed before this Court by
10.12.2014. It was further directed that apart from the sex-ratio, the
aforesaid three States shall also bring records with regard to the
prosecutions levied by the State yearwise and the stage of the prosecution.
19. Pursuant to order dated 25.11.2014, the Committee verified the data
submitted by three States, namely, Uttar Pradesh, Haryana and Delhi. As
far as the State of Uttar Pradesh was concerned, on a perusal of the
report, it transpired that the figures that were submitted by the State of
Uttar Pradesh had been verified by the Committee and found to be correct.
On a perusal of the report along with the documents that had been annexed
to, it was noticed that certain cases were pending for trial before the
trial Court. Regard being had to the fact that they had been instituted
long back, a direction was issued to the effect that the proceedings that
were pending before for trial and where there was no stay order of the High
Court or this Court, the same shall be taken up in quite promptitude and be
disposed of within a period of three months commencing 20th January, 2015.
Be it stated certain other directions were issued to be complied with by
the State of Uttar Pradesh.
20. At a subsequent stage, the data furnished by the States, i.e.,
Bihar, Himachal Pradesh, Rajasthan and Tamil Nadu were verified. On
15.4.2015 this Court’s attention was drawn to the sex ratio in Delhi which
had been verified by the Monitoring Committee as per the population census.
The said sex ratio relates to 2011 which reads as follows:-
“Sex Ratio as per Population Census The universal sex ratio of Delhi as per
population census for all age groups taken together was 821 females per
1000 males in 2001 and it has become 866 females per 1000 males as per
provisional data of census – 2011. Children sex ratio (0-6) of Delhi went
down marginally from 868 (as per census 2001) to 866 (as per census 2011).
As can be seen from statement 1.3, at both points of the figures of Delhi
were below than All India level. The district-wise scenario for the
children of 0-6 years varies in different districts.
Statement 1.3: Sex ratio of Delhi/All India as per population Census Data
|Sl. No |Item |Census Year |
|A |District wise sex ratio |2001 |2011 |
| |(Children of 0-6 years) | | |
| |South |888 |878 |
| |South West |846 |836 |
| |North West |857 |863 |
| |North |886 |872 |
| |Central |903 |902 |
| |New Delhi |898 |884 |
| |East |865 |870 |
| |North East |875 |875 |
| |West |859 |867 |
| |Delhi | | |
| |Children of 0-6 years |868 |866 |
| |All ages |821 |866 |
| |All India | | |
| |Children of 0 -6 years |927 |914 |
| |All ages |933 |940 |
Source: Population census – 2011”
21. Our attention was also drawn to the document which is 'Monthly
monitoring of the sex ratio of institutional birth'. It stated thus:-
“The data is collected on monthly basis from 50 major hospitals which
accounts for 50.87% of total registered births in the year 2013 in Delhi.
This helps to review the sex ratio at the highest level in the shortest
possible time without waiting for the yearly indicators. The sex ratio of
institutional births on the basis of these 50 hospitals was also 895 in the
year 2013. Efforts will be made to increase the coverage of health
institutions under the monthly monitoring system to make this exercise
meaningful and truly representative of the ground reality.”
22. Learned counsel appearing for NCT of Delhi, had drawn our attention
to the affidavit filed by the Union of India and especially to Annexure
'E'. Annexure 'E' is only report on registration of births and deaths in
Delhi in 2013. At page 114, the profile of birth Registration had been
mentioned under the caption 'The birth registration in civil registration
system'. It is as follows:-
“During 2013, a total of 370000 birth events were registered by all the
local bodies taken together. Out of them, 1.95 lakhs (52.76%) were male and
1.75 lakhs (47.24%) were female. Statement 3.1: Total Number of Births
registered under CRS sex-wise.
|Year |Total |Male |Female |Sex Ratio|
| |Births | | | |
|2001 |296287 |163816 |132471 |809 |
| | |(55.29) |(44.71) | |
|2002 |300659 |164184 |136475 |831 |
| | |(54.61) |(45.39) | |
|2003 |301165 |165173 |135992 |823 |
| | |(54.84) |(45.16) | |
|2004 |305974 |167849 |138125 |823 |
| | |(54.86) |(45.11) | |
|2005 |324336 |178031 |146305 |822 |
| | |(54.89) |(45.11) | |
|2006 |322750 |176242 |146508 |831 |
| | |(54.69) |(45,39) | |
|2007 |322044 |174289 |147755 |848 |
| | |(54.12) |(45.88) | |
|2008 |333908 |166583 |167325 |1004 |
| | |(49.89) |(50.11) | |
|2009 |354482 |185131 |169351 |915 |
| | |(52.22) |(47.78) | |
|2010 |359463 |189122 |170341 |901 |
| | |(52.61) |(47.39) | |
|2011 |353759 |186870 |166889 |893 |
| | |(52.82) |(47.18) | |
|2012 |360473 |191129 |169344 |886 |
| | |(53.02) |(46.98) | |
|2013 |370000 |195226 |174774 |895” |
| | |(52.76) |(47.24) | |
23. The data furnished by the NCT of Delhi was contested on the ground
that it was collected from 50 major hospitals. The Court noticed that
there had really been no improvement with regard to the sex ratio. The
Court took note of the submissions of Mr. Gonsalves, learned senior counsel
for the petitioner and Mr. Parikh, learned counsel for the impleaded
respondent(s) and observed that under Section 16(2)(f)(ii) and (iii) there
should be eminent women activists from non-governmental oraganisations and
eminent gynaecologists and obstetricians or experts of stri-
roga or prasuti tantra to be the members and thought it apt to state that
there can be eminent women activists from non-governmental organizations,
eminent gynaecologists and obstetricians or experts of stri-roga or prasuti
tantra and eminent radiologists or sonologists but care has to be taken
that they do not have conflict of interest.
24. On 15.09.2015, the Court noted the submission of Ms. Anitha Shenoy,
learned counsel appearing for Dr. Sabu Mathew George, the newly impleaded
party, that the appropriate authorities are not following the mandate
enshrined under Rule 18A of the Rules. Keeping in view the language
employed in the said Rule, the Court directed that all the appropriate
authorities including the State, districts and sub-districts notified under
the Act shall submit quarterly progress report to the Government of India
through the State Government and maintain Form H for keeping the
information of all registrations readily available. The Court further
directed that the States shall file the compliance report pertaining to sub-
rule (6) of Rule 18A of the Rules and also directed counsel for the Union
of India to apprise the Court about the information received from the
various appropriate authorities.
25. On 17.11.2015 when the matter was taken up, the Court adverted to the
fact that the State of Odisha, as directed, had provided the Committee
relevant documents, especially the documents which are required for
eradicating the deficiencies pointed out by the Committee. Be it noted,
the Committee had earlier pointed out certain deficiencies. The State had
filed the documents in pursuance of the order of the Court and the
Committee had filed report pertaining to the State of Odisha. Paragraph 4
of the report reads as follows:-
“4. The State of Odisha had cited the data on Sex Ratio at Birth from the
Civil Registration of births of State. State Provided the relevant data and
C.D. M.O, Odisha. There are 314 rural registration units & 100 urban
registration units I 30 districts in Odisha State. All the data is based on
the records of civil registration system. The Sex Ratio at Birth (SRB) data
for the year 2013 submitted in the affidavit is 886 whereas as per the
records submitted by the State data for the same period is 890. The
representatives of the State clarified that in the affidavit, the figures
were provisional.”
26. Mr. Gonsalves, learned senior counsel had also filed a chart
containing 'District-wise Sex Ratio at Birth of Odisha State' commencing
from the year 2010 to 2014. The said chart is reproduced below:-
“District wise sex ratio at birth of Odisha State
|Sl.No |Name of the |2010 |2011 |2012 |2013 |2014 |
| |District | | | | | |
|1 |2 |3 |4 |5 |6 |7 |
|1 |Angul |894 |900 |879 |890 |904 |
|2 |Balasore |923 |891 |912 |870 |870 |
|3 |Argarh |923 |889 |913 |891 |913 |
|4 |Bhadrak |923 |891 |876 |883 |875 |
|5 |Bolangir |945 |930 |933 |950 |939 |
|6 |Boudh |983 |957 |936 |934 |918 |
|7 |Cuttack |860 |874 |860 |854 |843 |
|8 |Deogarh |896 |954 |958 |954 |938 |
|9 |Dhenkanal |856 |833 |850 |845 |849 |
|10 |Gajapati |875 |930 |927 |890 |892 |
|11 |Ganjam |902 |880 |867 |813 |794 |
|12 |Jagatsinghpur |912 |905 |842 |777 |852 |
|13 |Jajpur |863 |876 |828 |824 |823 |
|14 |Jharsuguda |859 |902 |882 |908 |878 |
|15 |Kalahandi |888 |935 |968 |989 |942 |
|16 |Kandhamal |912 |943 |950 |962 |940 |
|17 |Kendrapara |881 |836 |828 |734 |705 |
|18 |Keonjhar |934 |923 |950 |965 |930 |
|19 |Khurda |892 |876 |884 |885 |842 |
|20 |Koraput |935 |943 |960 |945 |942 |
|21 |Malkangiri |948 |947 |993 |942 |935 |
|22 |Mayurbhanj |955 |934 |936 |931 |933 |
|23 |Nawarangpur |962 |932 |936 |979 |965 |
|24 |Nayagarh |874 |859 |774 |844 |811 |
|25 |Nuapada |945 |956 |955 |909 |1055 |
|26 |Puri |933 |888 |874 |873 |854 |
|27 |Rayagada |955 |954 |939 |931 |945 |
|28 |Sambalpur |906 |918 |908 |891 |903 |
|29 |Subarnapur |940 |934 |946 |939 |965 |
|30 |Sundargarh |911 |892 |865 |897 |906 |
| |Odisha |911 |902 |896 |886 |889” |
Learned counsel submitted that when the sex ratio reduces below 900,
there is a signal of a social disaster. He had pointed out that there were
many districts where it had fallen below 900 and drawn the attention of the
Court to two districts, namely, Kendrapara and Ganjam to highlight that the
sex ratio had gone down to 705 and 794 in 2014. Be it stated, the two
districts were only referred to highlight how the sex ratio had fallen in
the year 2014 than what it was in 2010.
27. We have adumbrated the history of the litigation, the directions
issued by this Court from time to time and adverted to how this Court has
appreciated the impact of sex ratio on a civilized society having regard to
the legislative intendment under the Act, the suggestions given by the
learned counsel for the petitioner, the verification done by the Monitoring
Committee, and the crisis the country is likely to face if the obtaining
situation is allowed to prevail. As is manifest, this Court had issued
directions from 2001 onwards in different writ petitions and in the instant
writ petition, as noticed earlier, number of directions were issued and,
thereafter, certain clarifications were made. The narration shows the
concern.
28. It needs no special emphasis that a female child is entitled to enjoy
equal right that a male child is allowed to have. The constitutional
identity of a female child cannot be mortgaged to any kind of social or
other concept that has developed or is thought of. It does not allow any
room for any kind of compromise. It only permits affirmative steps that
are constitutionally postulated. Be it clearly stated that when rights are
conferred by the Constitution, it has to be understood that such rights are
recognised regard being had to their naturalness and universalism. No one,
let it be repeated, no one, endows any right to a female child or, for that
matter, to a woman. The question of any kind of condescension or
patronization does not arise.
29. When a female foetus is destroyed through artificial means which is
legally impermissible, the dignity of life of a woman to be born is
extinguished. It corrodes the human values. The Legislature has brought a
complete code and it subserves the constitutional purpose. We may briefly
refer to the scheme of the Act and the Rules framed thereunder. Section 2
of the Act is the dictionary clause and it defines “foetus”, “Genetic
Counselling Centre”, “Genetic Clinic”, “Genetic Laboratory”, “pre-natal
diagnostic procedures”, “pre-natal diagnostic techniques”, “pre-natal
diagnostic test”, “sex selection”, “sonologist or imaging specialist”.
Section 3 provides for Regulation of Genetic Counselling Centers, Genetic
Laboratories and Genetic Clinics. Section 3A imposes prohibition of sex-
selection. Section 3B prohibits the sale of ultrasound machine, etc., to
persons, laboratories, clinics, etc., not registered under the Act.
Section 4 regulates pre-natal diagnostic techniques. Section 5
stipulates written consent of pregnant woman and prohibition of
communicating the sex of foetus. Section 6 prohibits determination of sex.
Chapter IV of the Act deals with the Central Supervisory Board. Sections
7 – 16A deal with the constitution of the Board, meetings of the Board,
functions of the Board, which includes reviewing and monitoring
implementation of the Act and Rules made thereunder. Section 16A commands
the States and Union Territories to have a Board to be known as the State
Supervisory Board or the Union Territory Supervisory Board, as the case may
be, to carry out the functions enumerated therein. Chapter V provides for
the Appropriate Authority and Advisory Committee. Sub-section (4) of
Section 17 deals with the powers of the Appropriate Authority. The said
provision being significant is extracted hereunder:-
“(4) the Appropriate Authority shall have the following functions, namely –
(a) to grant, suspend or cancel registration of a Genetic Counselling
Centre, Genetic Laboratory or Genetic Clinic;
(b) to enforce standards prescribed for the Genetic Counselling Centre,
Genetic Laboratory and Genetic Clinic;
(c) to investigate complaints of breach of the provisions of this Act or
the rules made thereunder and take immediate action;
(d)to seek and consider the advice of the Advisory Committee, constituted
under sub-section (5), on application for registration and on complaints
for suspension or cancellation of registration;
(e) to take appropriate legal action against the use of any sex selection
technique by any person at any place, suo motu or brought to its notice and
also to initiate independent investigations in such matter;
(f) to create public awareness against the practice of sex selection or pre-
natal determination of sex;
(g) to supervise the implementation of the provisions of the Act and rules;
(h) to recommend to the Board and State Boards modifications required in
the rules in accordance with changes in technology or social conditions;
(i) to take action on the recommendations of the Advisory Committee made
after investigation of complaint for suspension or cancellation of
registration.”
30. Section 17A enumerates the powers of the Appropriate Authorities.
The said provision reads as follows:-
“17A. Powers of Appropriate Authorities.- The Appropriate Authority shall
have the powers in respect of the following maters, namely:-
(a) summoning of any person who is in possession of any information
relating to violation of the provisions of this Act or the rules made
thereunder;
(b) production of any document or material object relating to clause (a);
(c) issuing search warrant for any place suspected to be indulging in sex
selection techniques or pre-natal sex determination; and
(d) any other matter which may be prescribed.”
31. Section 18 deals with the registration of Genetic Counselling
Centres, Genetic Laboratories or Genetic Clinics. Sections 19 and 20
provide for certificate of registration and cancellation or suspension of
registration. Chapter VII deals with offences and penalties. Section 22
stipulates prohibition of advertisement relating to pre-
conception and pre-natal determination of sex and punishment for
contravention and Section 23 deals with offences and penalties. Section 24
which has been brought into the Act by way of an amendment with effect from
14.02.2003 states with regard to presumption in the case of
conduct of pre-natal diagnostic techniques. Section 26 provides for
offences by companies. Section 28 provides that no court shall take
cognizance of an offence under the Act except on a complaint made by the
Appropriate Authority concerned, or any officer authorized in this behalf
by the Central Government or State Government, as the case may be, or the
Appropriate Authority; or a person who has given notice of not less than
fifteen days in the manner prescribed. Section 29 occurring in Chapter
VIII which deals with miscellaneous matters provides for maintenance of
records. Section 30 empowers the appropriate authority in respect of search
and seizure of records. The rule framed under Section 32 of the Act is not
comprehensive. Various Forms have been provided to meet the requirement by
the Rules. On a perusal of the Rules and the Forms, it is clear as crystal
that attention has been given to every detail.
32. Having stated about the scheme of the Act and the purpose of the
various provisions and also the Rules framed under the Act, the dropping of
sex ratio still remains a social affliction and a disease.
33. Keeping in view the deliberations made from time to time and regard
being had to the purpose of the Act and the far reaching impact of the
problem, we think it appropriate to issue the following directions in
addition to the directions issued in the earlier order:-
(a) All the States and the Union Territories in India shall maintain a
centralized database of civil registration records from all registration
units so that information can be made available from the website regarding
the number of boys and girls being born.
(b) The information that shall be displayed on the website shall contain
the birth information for each District, Municipality, Corporation or Gram
Panchayat so that a visual comparison of boys and girls born can be
immediately seen.
(c) The statutory authorities if not constituted as envisaged under the Act
shall be constituted forthwith and the competent authorities shall take
steps for the reconstitution of the statutory bodies so that they can
become immediately functional after expiry of the term. That apart, they
shall meet regularly so that the provisions of the Act can be implemented
in reality and the effectiveness of the legislation is felt and realized in
the society.
(d) The provisions contained in Sections 22 and 23 shall be strictly
adhered to. Section 23(2) shall be duly complied with and it shall be
reported by the authorities so that the State Medical Council takes
necessary action after the intimation is given under the said provision.
The Appropriate Authorities who have been appointed under Sections 17(1)
and 17(2) shall be imparted periodical training to carry out the functions
as required under various provisions of the Act.
(e) If there has been violation of any of the provisions of the Act or the
Rules, proper action has to be taken by the authorities under the Act so
that the legally inapposite acts are immediately curbed.
(f) The Courts which deal with the complaints under the Act shall be fast
tracked and the concerned High Courts shall issue appropriate directions in
that regard.
(g) The judicial officers who are to deal with these cases under the Act
shall be periodically imparted training in the Judicial Academies or
Training Institutes, as the case may be, so that they can be sensitive and
develop the requisite sensitivity as projected in the objects and reasons
of the Act and its various provisions and in view of the need of the
society.
(h) The Director of Prosecution or, if the said post is not there, the
Legal Remembrancer or the Law Secretary shall take stock of things with
regard to the lodging of prosecution so that the purpose of the Act is
subserved.
(i) The Courts that deal with the complaints under the Act shall deal with
the matters in promptitude and submit the quarterly report to the High
Courts through the concerned Sessions and District Judge.
(j) The learned Chief Justices of each of the High Courts in the country
are requested to constitute a Committee of three Judges that can
periodically oversee the progress of the cases.
(k) The awareness campaigns with regard to the provisions of the Act as
well as the social awareness shall be undertaken as per the direction No
9.8 in the order dated March 4, 2013 passed in Voluntary Health Association
of Punjab (supra).
(l) The State Legal Services Authorities of the States shall give emphasis
on this campaign during the spread of legal aid and involve the para-legal
volunteers.
(m) The Union of India and the States shall see to it that appropriate
directions are issued to the authorities of All India Radio and Doordarshan
functioning in various States to give wide publicity pertaining to the
saving of the girl child and the grave dangers the society shall face
because of female foeticide.
(n) All the appropriate authorities including the States and districts
notified under the Act shall submit quarterly progress report to the
Government of India through the State Government and maintain Form H for
keeping the information of all registrations readily available as per sub-
rule 6 of Rule 18A of the Rules.
(o) The States and Union Territories shall implement the Pre-conception and
Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) (Six Months
Training) Rules, 2014 forthwith considering that the training provided
therein is imperative for realising the objects and purpose of this Act.
(p) As the Union of India and some States framed incentive schemes for the
girl child, the States that have not framed such schemes, may introduce
such schemes.
34. Before parting with the case, let it be stated with certitude and
without allowing any room for any kind of equivocation or ambiguity, the
perception of any individual or group or organization or system treating a
woman with inequity, indignity, inequality or any kind of discrimination is
constitutionally impermissible. The historical perception has to be given a
prompt burial. Female foeticide is conceived by the society that definitely
includes the parents because of unethical perception of life and nonchalant
attitude towards law. The society that treats man and woman with equal
dignity shows the reflections of a progressive and civilized society. To
think that a woman should think what a man or a society wants her to think
is tantamounts to slaughtering her choice, and definitely a humiliating
act. When freedom of free choice is allowed within constitutional and
statutory parameters, others cannot determine the norms as that would
amount to acting in derogation of law. Decrease in the sex ratio is a sign
of colossal calamity and it cannot be allowed to happen. Concrete steps
have to be taken to increase the same so that invited social disasters do
not befall on the society. The present generation is expected to be
responsible to the posterity and not to take such steps to sterilize the
birth rate in violation of law. The societal perception has to be
metamorphosed having respect to legal postulates.
35. Now, we shall advert to the prayers in Writ Petition (Civil) No. 575
of 2014. The writ petition has been filed by Indian Medical Association
(IMA). It is contended that Sections 3-A, 4, 5, 6, 7, 16, 17, 20, 23, 25,
27 and 30 of the Act and Rules 9(4), 10 & Form “F” (including foot-note),
which being the subject matter of concern in the instant writ petition, are
being misused and wrongly interpreted by the concerned authorities thereby
causing undue harassment to the medical professionals all over the country
under the guise of the ‘so-called implementation’. It is also urged that,
implementation of steps and scrutiny of records was started at large scale
all over the country and lot of anomalies were found in records maintained
by doctors throughout the country. It is however pertinent to mention here
that the majority of the defaults were of technical nature as they were
merely minor and clerical errors committed occasionally and inadvertently
in the filing of Form “F”. It is also put forth that the Act does not
classify the offences and owing to the liberal and vague terminology used
in the Act, it is thrown open for misuse by the concerned implementing
authorities and has resulted into taking of cognizance of non-bailable
(punishable by three years) offences against doctors even in the cases of
clerical errors, for instance non-mentioning of N.A. (Not Applicable) or
leaving of any column in the concerned Form “F” as blank. It is further
submitted that the said unfettered powers in the hands of implementing
authority have resulted into turning of this welfare legislation into a
draconian novel way of encouraging demands for bribery as well as there is
no prior independent investigation as mandated under Section 17 of the Act
by these Authorities. It is also set forth that the Act states merely that
any contravention with any of the provisions of the Act would be an offence
punishable under Section 23(1) of the said Act and further all offences
under the Act have been made non-bailable and non-compoundable and the
misuse of the same can only be taken care of by ensuring that the
Appropriate Authority applies its mind to the fact of each case/complaint
and only on satisfaction of a prima facie case, a complaint be filed rather
than launching prosecution mechanically in each case. With these averments,
it has been prayed for framing appropriate guidelines and safeguard
parameters, providing for classification of offences as well, so as to
prohibit the misuse of the PCPNDT Act during implementation and to read
down this Sections 6, 23, 27 of PCPNDT Act. That apart, it has been prayed
to add certain provisos/exceptions to Sections 7, 17, 23 and Rule 9 of the
Rules.
36. In our considered opinion, whenever there is an abuse of the process
of the law, the individual can always avail the legal remedy. As we find,
neither the validity of the Act nor the Rules has been specifically
assailed in the writ petition. What has been prayed is to read out certain
provisions and to add certain exceptions. We are of the convinced view
that the averments of the present nature with such prayers cannot be
entertained and, accordingly, we decline to interfere.
37. In the result, Writ Petition (Civil) No. 349 of 2006 stands disposed
of in terms of the directions issued by us and Writ Petition (Civil) No.
575 of 2014 stands dismissed. In the facts and circumstances of the case,
there shall be no order as to costs.
.............................J.
[Dipak Misra]
............................ J.
[Shiva Kirti Singh]
New Delhi;
November 8, 2016
-----------------------
[1] (1997) 7 SCC 110
[2] (2001) 5 SCC 577
[3] (2003) 8 SCC 398
[4] (2013) 4 SCC 1
-----------------------
43
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 349 OF 2006
Voluntary Health Association ... Petitioner(s)
of Punjab
Versus
Union of India and Others ... Respondent(s)
WITH
WRIT PETITION (CIVIL) NO. 575 OF 2014
J U D G M E N T
Dipak Misra, J.
The two writ petitions being inter-connected in certain aspects were
heard together and are disposed of by the singular order. We shall first
deal with the grievance agitated in Writ Petition (Civil) No. 349 of 2006
and thereafter advert to what has been asserted in the other writ petition.
Be it stated immediately that the issues raised in Writ Petition (Civil)
No. 349 of 2006 are not agitated for the first time, for they had been
raised on earlier occasions and dealt with serious concern and solemn
sincerity. It is because they relate to the very core of existence of a
civilized society, pertain to the progress of the human race, and expose
the maladroit efforts to throttle the right of a life to feel the mother
earth and smell its fragrance. And, if we allow ourselves to say, the
issues have been highlighted with sincere rhetorics and balanced hyperboles
and ring the alarm of destruction of humanity in the long run. It is not a
group prophecy, but a significant collective predication. The involvement
of all is obvious, and it has to be. The heart of the issue that is
zealously projected by the petitioner is the increase of female foeticide,
resultant imbalance of sex ratio and the indifference in the implementation
of the stringent law that is in force. In essence, the fulcrum of the
anguished grievance lays stress on the non-implementation of the provisions
of The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of
Sex Selection) Act, 1994 (for brevity “the Act”) and The Pre-conception and
Pre-natal Diagnostic Techniques (Prohibition of Sex
Selection) Rules, 1996 (for short “the Rules”) framed under the Act by the
competent authorities who are obliged to do so.
2. The grievance has a narrative, and it needs to be stated.
3. Realising the rise of pre-natal diagnostic centres in urban areas of
the country using pre-natal diagnostic techniques for determination of sex
of the foetus and that the said centres had become very popular and had
tremendous growth, as the female child is not welcomed with open arms in
many Indian families and the consequence that such centres became centres
for female foeticide which affected the dignity and status of women, the
Parliament brought in the legislation to regulate the use of such
techniques and to provide punishment for such inhuman act. The objects and
reasons of the Act stated unequivocally that it was meant to prohibit the
misuse of pre-natal diagnostic techniques for determination of sex of the
foetus, leading to female foeticide; to prohibit advertisement of pre-natal
diagnostic techniques for detection or determination of sex; to permit and
regulate the use of pre-natal diagnostic techniques for the purpose of
detection of specific genetic abnormalities or disorders; to permit the use
of such techniques only under certain conditions by the registered
institutions; and to punish for violation of the provisions of the proposed
legislation. The Preamble of the Act provides for the prohibition of sex
selection before or after conception, and for regulation of pre-natal
diagnostic techniques for the purposes of detecting genetic abnormalities
or metabolic disorders or chromosomal abnormalities or certain congenital
malformations or sex-linked disorders and for the prevention of their
misuse for sex determination leading to female foeticide and for matters
connected therewith or incidental thereto. Be it noted when the Act came
into force, it was named as the Pre-natal Diagnostic Techniques (Regulation
and Prevention of Misuse) Act, 1994 and after the amendments in 2001 and
2003, in the present incarnation, it is called The Pre-conception and Pre-
natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.
4. As the violence and cruelty meted out to women gradually got revealed
due to rights and protections prescribed under various legislations, the
Court perceived the magnitude of the crime. Such a situation compelled
this Court, in Ajit Savant Majagvai v. State of Karnataka[1], while
dealing with the physical violence, torture, mental cruelty and murder of
the female particularly the wife, to comment on the degeneration of
relationship and the prevalent atmosphere by observing that:-
“3. Social thinkers, philosophers, dramatists, poets and writers have
eulogised the female species of the human race and have always used
beautiful epithets to describe her temperament and personality and have not
deviated from that path even while speaking of her odd behaviour, at times.
Even in sarcasm, they have not crossed the literary limit and have adhered
to a particular standard of nobility of language. Even when a member of her
own species, Madame De Stael, remarked “I am glad that I am not a man; for
then I should have to marry a woman”, there was wit in it. When Shakespeare
wrote, “Age cannot wither her; nor custom stale, her infinite variety”,
there again was wit. Notwithstanding that these writers have cried hoarse
for respect for “woman”, notwithstanding that Schiller said “Honour women!
They entwine and weave heavenly roses in our earthly life” and
notwithstanding that the Mahabharata mentioned her as the source of
salvation, crime against “woman” continues to rise and has, today
undoubtedly, risen to alarming proportions.
4. It is unfortunate that in an age where people are described as
civilised, crime against “female” is committed even when the child is in
the womb as the “female” foetus is often destroyed to prevent the birth of
a female child. If that child comes into existence, she starts her life as
a daughter, then becomes a wife and in due course, a mother. She rocks the
cradle to rear up her infant, bestows all her love on the child and as the
child grows in age, she gives to the child all that she has in her own
personality. She shapes the destiny and character of the child. To be cruel
to such a creature is unthinkable.”
[Emphasis added]
5. We may repeat, the aforestated observation though made totally in a
different context but nonetheless, it seemly stated the marrow of the
problem. Needless to emphasise, the predicament with regard to female
foeticide by misuse of modern science and technology has aggravated and
enormously affected the sex ratio. To eradicate the malady, the Parliament,
as stated earlier, had enacted the Act. In the first year of this century,
a petition under Article 32 was moved for issuing directions to implement
the provisions of the said Act by (a) appointing appropriate authorities at
State and district levels and the Advisory Committees; (b) issuing
direction to the Central Government to ensure that the Central Supervisory
Board meets every 6 months as provided under the PNDT Act; and for banning
of all advertisements of prenatal sex selection including all other sex-
determination techniques which can be abused to selectively produce only
boys either before or during pregnancy. A two-Judge bench in Center for
Enquiry into Health & Allied Themes (CEHAT) and others v. Union of India
and others[2] and Center for Enquiry into Health & Allied Themes (CEHAT)
and others v. Union of India and others[3] on 04.05.2001 issued certain
directions. Apart from the directions contained in the said orders, the
Court, while finally disposing of the writ petition, issued the following
directions:-
“(a) For effective implementation of the Act, information should be
published by way of advertisements as well as on electronic media. This
process should be continued till there is awareness in the public that
there should not be any discrimination between male and female child.
(b) Quarterly reports by the appropriate authority, which are submitted to
the Supervisory Board should be consolidated and published annually for
information of the public at large.
(c) Appropriate authorities shall maintain the records of all the meetings
of the Advisory Committees.
(d) The National Inspection and Monitoring Committee constituted by the
Central Government for conducting periodic inspection shall continue to
function till the Act is effectively implemented. The reports of this
Committee be placed before the Central Supervisory Board and State
Supervisory Boards for any further action.
(e) As provided under Rule 17(3), the public would have access to the
records maintained by different bodies constituted under the Act.
(f) The Central Supervisory Board would ensure that the following States
appoint the State Supervisory Boards as per the requirement of Section 16-
A: 1. Delhi, 2. Himachal Pradesh, 3. Tamil Nadu, 4. Tripura, and 5. Uttar
Pradesh.
(g) As per the requirement of Section 17(3)(a), the Central Supervisory
Board would ensure that the following States appoint the multi-member
appropriate authorities: 1. Jharkhand, 2. Maharashtra, 3. Tripura, 4. Tamil
Nadu, and 5. Uttar Pradesh. It will be open to the parties to approach this
Court in case of any difficulty in implementing the aforesaid directions”.
6. Despite the directions issued by the Court, there had not been proper
implementation and that compelled the present petitioner, namely, Voluntary
Health Association of Punjab to file the present Writ Petition seeking
various directions. The Court on 08.01.2013 took note of the fact that
the provisions had not been adequately implemented by the various States
and Union Territories and accordingly directed for personal appearance of
the Health Secretaries of the States of Punjab, Haryana, NCT of Delhi,
Rajasthan, Uttar Pradesh, Bihar and Maharashtra, to examine what steps they
had taken for the proper and effective implementation of the provisions of
the Act as well as the various directions issued by this Court.
7. At a later stage, a reference was made to 2011 Census of India to
highlight there had been a sharp decline in the female sex ratio in many
States. It was also observed that there had been no effective supervision
or follow-up action so as to achieve the object and purpose of the Act. It
was observed that mushrooming of various sonography centres, genetic
clinics, genetic counselling centres, genetic laboratories, ultrasonic
clinics, imaging centres in almost all parts of the country called for more
vigil and attention by the authorities under the Act. The Court also found
that their functioning was not being properly monitored or supervised by
the authorities under the Act or to find out whether they are misusing the
pre-natal diagnostic techniques for determination of sex of foetus leading
to foeticide.
8. A reference was made to various facets of the Act and the Rules and
ultimately the Court in Voluntary Health Association of Punjab v. Union of
India and others[4] issued the following directions:-
“9.1. The Central Supervisory Board and the State and Union Territories
Supervisory Boards, constituted under Sections 7 and 16-A of PN & PNDT Act,
would meet at least once in six months, so as to supervise and oversee how
effective is the implementation of the PN & PNDT Act.
9.2. The State Advisory Committees and District Advisory Committees should
gather information relating to the breach of the provisions of the PN &
PNDT Act and the Rules and take steps to seize records, seal machines and
institute legal proceedings, if they notice violation of the provisions of
the PN & PNDT Act.
9.3. The committees mentioned above should report the details of the
charges framed and the conviction of the persons who have committed the
offence, to the State Medical Councils for proper action, including
suspension of the registration of the unit and cancellation of licence to
practice.
9.4. The authorities should ensure also that all genetic counselling
centres, genetic laboratories and genetic clinics, infertility clinics,
scan centres, etc. using pre-conception and pre-natal diagnostic techniques
and procedures should maintain all records and all forms, required to be
maintained under the Act and the Rules and the duplicate copies of the same
be sent to the district authorities concerned, in accordance with Rule 9(8)
of the Rules.
9.5. States and District Advisory Boards should ensure that all
manufacturers and sellers of ultrasonography machines do not sell any
machine to any unregistered centre, as provided under Rule 3-A and
disclose, on a quarterly basis, to the State/Union Territory concerned and
the Central Government, a list of persons to whom the machines have been
sold, in accordance with Rule 3-A(2) of the Rules.
9.6. There will be a direction to all genetic counselling centres, genetic
laboratories, clinics, etc. to maintain Forms A, E, H and other statutory
forms provided under the Rules and if these forms are not properly
maintained, appropriate action should be taken by the authorities
concerned.
9.7. Steps should also be taken by the State Government and the authorities
under the Act for mapping of all registered and unregistered
ultrasonography clinics, in three months’ time.
9.8. Steps should be taken by the State Governments and the Union
Territories to educate the people of the necessity of implementing the
provisions of the Act by conducting workshops as well as awareness camps at
the State and district levels.
9.9. Special cell be constituted by the State Governments and the Union
Territories to monitor the progress of various cases pending in the courts
under the Act and take steps for their early disposal.
9.10. The authorities concerned should take steps to seize the machines
which have been used illegally and contrary to the provisions of the Act
and the Rules thereunder and the seized machines can also be confiscated
under the provisions of the Code of Criminal Procedure and be sold, in
accordance with law.
9.11. The various courts in this country should take steps to dispose of
all pending cases under the Act, within a period of six months. Communicate
this order to the Registrars of various High Courts, who will take
appropriate follow-up action with due intimation to the courts concerned.”
A further direction was given to file the Status Report within a period of
three months. It is apt to note here that in the concurring opinion Dipak
Misra, J. only highlighted certain aspects that pertained to direction
contained in paragraph 9.8.
9. We may profitably reproduce certain passages from the concurring
opinion:-
“14. Female foeticide has its roots in the social thinking which is
fundamentally based on certain erroneous notions, egocentric traditions,
perverted perception of societal norms and obsession with ideas which are
totally individualistic sans the collective good. All involved in female
foeticide deliberately forget to realise that when the foetus of a girl
child is destroyed, a woman of the future is crucified. To put it
differently, the present generation invites the sufferings on its own and
also sows the seeds of suffering for the future generation, as in the
ultimate eventuate, the sex ratio gets affected and leads to manifold
social problems. I may hasten to add that no awareness campaign can ever be
complete unless there is real focus on the prowess of women and the need
for women empowerment.
x x x x x
19. A woman has to be regarded as an equal partner in the life of a man. It
has to be borne in mind that she has also the equal role in the society
i.e. thinking, participating and leadership.
x x x x x
21. When a female foeticide takes place, every woman who mothers the child
must remember that she is killing her own child despite being a mother.
That is what abortion would mean in social terms. Abortion of a female
child in its conceptual eventuality leads to killing of a woman. Law
prohibits it; scriptures forbid it; philosophy condemns it; ethics
deprecate it, morality decries it and social science abhors it. Henrik
Ibsen emphasised on the individualism of woman. John Milton treated her to
be the best of all God’s work. In this context, it will be appropriate to
quote a few lines from Democracy in America by Alexis de Tocqueville:
“If I were asked … to what the singular prosperity and growing strength of
that people [Americans] ought mainly to be attributed, I should reply: To
the superiority of their women.”
x x x x x
32. A cosmetic awareness campaign would never subserve the purpose. The
authorities of the Government, the non-governmental organisations and other
volunteers are required to remember that there has to be awareness camps
which are really effective. The people involved with the same must take it
up as a service, a crusade. They must understand and accept that it is an
art as well as a science and not simple arithmetic. It cannot take the
colour of a routine speech. The awareness camps should not be founded on
the theory of Euclidian geometry. It must engulf the concept of social
vigilance with an analytical mind and radiate into the marrows of the
society. If awareness campaigns are not appositely conducted, the needed
guidance for the people would be without meaning and things shall fall
apart and everyone would try to take shelter in cynical escapism.
33. It is difficult to precisely state how an awareness camp is to be
conducted. It will depend upon what kind and strata of people are being
addressed to. The persons involved in such awareness campaign are required
to equip themselves with constitutional concepts, culture, philosophy,
religion, scriptural commands and injunctions, the mandate of the law as
engrafted under the Act and above all the development of modern science. It
needs no special emphasis to state that in awareness camps while the
deterrent facets of law are required to be accentuated upon, simultaneously
the desirability of law to be followed with spiritual obeisance, regard
being had to the purpose of the Act, has to be stressed upon. The seemly
synchronisation shall bring the required effect. That apart, documentary
films can be shown to highlight the need; and instil the idea in the mind
of the public at large, for when the mind becomes strong, mountains do
melt.
34. The people involved in the awareness campaigns should have boldness and
courage. There should not be any iota of confusion or perplexity in their
thought or action. They should treat it as a problem and think that a
problem has to be understood in a proper manner to afford a solution. They
should bear in mind that they are required to change the mindset of the
people, the grammar of the society and unacceptable beliefs inherent in the
populace.”
10. As directed in the judgment, the matter was listed and certain
clarifications were sought for by the Union of India with regard to the
directions vide direction Nos. 2, 3, 4 and 6 pointing out that the
authorities mentioned in direction No. 2 should also include appropriate
authority under Section 17 and Section 17A of the Act. With regard to
direction No. 6, it was submitted that instead of Forms A, E and H, Forms
A, D, F, G & H be substituted. The said prayers were allowed and the
States were directed to file their respective status report.
11. On 16.9.2014 the Court took note of the directions already issued and
proceeded to deal with I.A. No. 11 of 2013 and recorded the submission of
Mr. Sanjay Parikh, learned counsel that the Union of India has to animate
itself in an appropriate manner to see that the sex ratio is maintained and
does not reduce further. It was also urged by him that the Central
Supervision Committee which is required to meet to take stock of the
situation and the National Monitoring Committee who is required to monitor
the activities, had failed in their duties.
12. Mr. Parikh had also drawn the attention of the Court to the proviso
to Section 4(3) of the Act which reads as follows:-
“4. Regulation of pre-natal diagnostic techniques.-- On and from the
commencement of this Act,-- (1) … (2) … (3) …
Provided that the person conducting ultrasonography on a pregnant woman
shall keep complete record thereof in the clinic in such manner, as may be
prescribed, and any deficiency or inaccuracy found therein shall amount to
contravention of the provisions of section 5 and section 6 unless contrary
is proved by the person conducting such ultrasonography.”
13. It was propounded by him that the concerned authorities have not
acted in accordance with the aforesaid provision in all seriousness as a
result of which the nation has faced the disaster of female foeticide. On
that day, Mr. Colin Gonsalves, learned senior counsel appearing
for the writ petitioner had drawn our attention to the affidavit filed by
the petitioner contending, inter alia, that the sex ratio in most of the
States had decreased and in certain States, there had been a minor
increase, but the same is not likely to subserve the aims and objects of
the Act. After referring to the history of this litigation which has been
continuing in this Court since long, he had submitted that certain
directions are required to be issued.
14. The Union of India was directed to file an affidavit of the
Additional Secretary of Health and/or any other concerned Additional
Secretary clearly stating what steps had been taken and on the basis of the
steps taken, what results have been achieved. It was also directed that
all the States shall file their responses through the concerned Health
Secretaries. The direction further contained that the affidavits shall be
comprehensive and must reflect sincerity and responsibility.
15. On 25.11.2014 the Court noted that affidavits by certain States had
been filed and certain States, namely, Assam, Arunachal Pradesh, Bihar,
Goa, Gujarat, Kerala, Madhya Pradesh, Meghalaya, Mizoram, Odisha, Tripura,
and UT of Daman and Nagar Haveli and Puducherry had not filed the
affidavits. Two weeks time was granted to file the necessary affidavits.
At that juncture, it was thought appropriate to advert to the States by
dividing them into certain clusters. It was decided to deal with the
situation pertaining to the States of Uttar Pradesh, Haryana and NCT of
Delhi first. The affidavit filed by the State of Uttar Pradesh was
considered and in that context it was observed that the census conducted in
2011 cannot be the guideline for the purposes of PC-PNDT Act. It was felt
that a different methodology was required to be adopted by the State.
Paragraph 28 of the affidavit, which is of significance, is extracted
below:-
“28. That it is pertinent to mention herein that according to “ANNUAL
HEALTH SURVEY (AHS)” for the year 2010-11, 2011-12 and 2012-13, improvement
has been revealed in the State in respect of Sex Ratio At Birth, Sex Ratio
of Child (0 to 04 years age) and Sex Ratio in all age group, which is clear
with the table given below:
|Year of |Sex Ratio |Sex Ratio |Sex Ratio |
|Annual |(at birth) |(0 to 4 |(In all |
|Health | |years of |ages) |
|Survey | | | |
|2010-11 |904 |913 |943 |
|2011-12 |908 |914 |944 |
|2012-13 |921 |919 |946 |
It is necessary to mention here that on a query being made by the
Court, learned counsel for the State was not in a position to explain on
what basis the said figures had been arrived at, for the same was not
reflectible from the assertions made in the affidavit.
16. As far as the State of Haryana is concerned, the chart given in
paragraph 15 of the affidavit indicated district-wise and month-wise sex
ratio of births during the year 2014. It is as follows:-
|“District wise and month wise Sex Ratio at Birth during year|
|2014 in Haryana State as per CRS (Prov) |
|Sr. |District |Up to |Up to |Up to|Up to|Up to|Up to |
|No | |Jan.14 |Feb.14 |Mar |April|May |June |
| | | | |14 |14 |14 |14 |
|1 |Ambala |1012 |993 |959 |939 |913 |910 |
|2 |Bhiwani |824 |812 |843 |848 |846 |832 |
|3 |Faridabad |929 |892 |889 |884 |890 |890 |
|4 |Fatehabad |859 |898 |890 |888 |886 |874 |
|5 |Gurgaon |829 |856 |851 |854 |855 |839 |
|6 |Hissar |892 |872 |883 |878 |885 |880 |
|7 |Jhajjar |797 |793 |793 |801 |800 |811 |
|8 |Jind |886 |876 |878 |911 |915 |899 |
|9 |Kaithal |953 |921 |920 |928 |927 |918 |
|10 |Karnal |911 |899 |888 |881 |889 |894 |
|11 |Kurukshetra |956 |904 |900 |892 |890 |888 |
|12 |Mewat |920 |942 |932 |923 |920 |919 |
|13 |Mohindergarh |777 |776 |797 |786 |782 |770 |
|14 |Palwal |867 |871 |871 |871 |876 |875 |
|15 |Panchkula |853 |837 |860 |914 |902 |914 |
|16 |Panpat |924 |931 |915 |904 |903 |895 |
|17 |Rewari |856 |850 |849 |822 |816 |806 |
|18 |Rohtak |894 |884 |865 |863 |859 |889 |
|19 |Sirsa |897 |872 |879 |885 |892 |886 |
|20 |Sonepat |859 |884 |850 |838 |834 |835 |
|21 |Yamuna naga |903 |940 |916 |897 |894 |869 |
| |Haryana State |889 |884 |881 |878 |878 |874” |
Nothing had been filed stating as to how the aforesaid figures had
been reached except making a statement that the figures were arrived at on
the basis of entry in certain registers.
17. On a perusal of the affidavit by the NCT of Delhi, it was noted that
in paragraph 5, it had been stated, thus:-
“5. It is submitted that Sex Ratio at Birth in Delhi, which is a reliable
indicator of violations under the PC & PNDT Act, has improved by 9 points
in 2013 over the previous year. The data available from Civil Registration
System indicates that Sex Ratio at Birth was 809 females per 1000 males in
the year 2001 and it is currently at 895 in 2013 Annexure R-I.”
18. At that stage, the Court felt the need for verification of the
documents that formed the basis on which these figures had been reached.
It was also clarified that the figures that had been put forth did not show
much indication of improvement but it was necessary to verify whether the
figures that had been set forth was correct or not. The purpose was to find
out whether there was degradation of sex ratio or stagnation or any steps
had really been taken by the concerned States to improve/enhance the sex
ratio or not; and accordingly it was directed that a meeting be held under
the auspices of National Inspection and Monitoring Committee wherein the
Additional Secretary who had filed the affidavit for the Union of India and
two other Joint Secretaries of the Ministry of Health and Family Welfare
shall remain present. The deponents who had filed the affidavits before
this Court on behalf of the State of Uttar Pradesh and NCT of Delhi were
directed to remain present. The Director General, Health Services, State of
Haryana and the Principal Secretary along with the Special Secretary, State
of Uttar Pradesh were also directed to remain present in the meeting and to
produce the relevant registers/records before the said Committee on the
date fixed. Mr. Gonsalves, learned senior counsel for the petitioner and
Mr. Parikh, learned counsel for the impleaded respondent(s) were allowed to
be present. The report was required to be filed before this Court by
10.12.2014. It was further directed that apart from the sex-ratio, the
aforesaid three States shall also bring records with regard to the
prosecutions levied by the State yearwise and the stage of the prosecution.
19. Pursuant to order dated 25.11.2014, the Committee verified the data
submitted by three States, namely, Uttar Pradesh, Haryana and Delhi. As
far as the State of Uttar Pradesh was concerned, on a perusal of the
report, it transpired that the figures that were submitted by the State of
Uttar Pradesh had been verified by the Committee and found to be correct.
On a perusal of the report along with the documents that had been annexed
to, it was noticed that certain cases were pending for trial before the
trial Court. Regard being had to the fact that they had been instituted
long back, a direction was issued to the effect that the proceedings that
were pending before for trial and where there was no stay order of the High
Court or this Court, the same shall be taken up in quite promptitude and be
disposed of within a period of three months commencing 20th January, 2015.
Be it stated certain other directions were issued to be complied with by
the State of Uttar Pradesh.
20. At a subsequent stage, the data furnished by the States, i.e.,
Bihar, Himachal Pradesh, Rajasthan and Tamil Nadu were verified. On
15.4.2015 this Court’s attention was drawn to the sex ratio in Delhi which
had been verified by the Monitoring Committee as per the population census.
The said sex ratio relates to 2011 which reads as follows:-
“Sex Ratio as per Population Census The universal sex ratio of Delhi as per
population census for all age groups taken together was 821 females per
1000 males in 2001 and it has become 866 females per 1000 males as per
provisional data of census – 2011. Children sex ratio (0-6) of Delhi went
down marginally from 868 (as per census 2001) to 866 (as per census 2011).
As can be seen from statement 1.3, at both points of the figures of Delhi
were below than All India level. The district-wise scenario for the
children of 0-6 years varies in different districts.
Statement 1.3: Sex ratio of Delhi/All India as per population Census Data
|Sl. No |Item |Census Year |
|A |District wise sex ratio |2001 |2011 |
| |(Children of 0-6 years) | | |
| |South |888 |878 |
| |South West |846 |836 |
| |North West |857 |863 |
| |North |886 |872 |
| |Central |903 |902 |
| |New Delhi |898 |884 |
| |East |865 |870 |
| |North East |875 |875 |
| |West |859 |867 |
| |Delhi | | |
| |Children of 0-6 years |868 |866 |
| |All ages |821 |866 |
| |All India | | |
| |Children of 0 -6 years |927 |914 |
| |All ages |933 |940 |
Source: Population census – 2011”
21. Our attention was also drawn to the document which is 'Monthly
monitoring of the sex ratio of institutional birth'. It stated thus:-
“The data is collected on monthly basis from 50 major hospitals which
accounts for 50.87% of total registered births in the year 2013 in Delhi.
This helps to review the sex ratio at the highest level in the shortest
possible time without waiting for the yearly indicators. The sex ratio of
institutional births on the basis of these 50 hospitals was also 895 in the
year 2013. Efforts will be made to increase the coverage of health
institutions under the monthly monitoring system to make this exercise
meaningful and truly representative of the ground reality.”
22. Learned counsel appearing for NCT of Delhi, had drawn our attention
to the affidavit filed by the Union of India and especially to Annexure
'E'. Annexure 'E' is only report on registration of births and deaths in
Delhi in 2013. At page 114, the profile of birth Registration had been
mentioned under the caption 'The birth registration in civil registration
system'. It is as follows:-
“During 2013, a total of 370000 birth events were registered by all the
local bodies taken together. Out of them, 1.95 lakhs (52.76%) were male and
1.75 lakhs (47.24%) were female. Statement 3.1: Total Number of Births
registered under CRS sex-wise.
|Year |Total |Male |Female |Sex Ratio|
| |Births | | | |
|2001 |296287 |163816 |132471 |809 |
| | |(55.29) |(44.71) | |
|2002 |300659 |164184 |136475 |831 |
| | |(54.61) |(45.39) | |
|2003 |301165 |165173 |135992 |823 |
| | |(54.84) |(45.16) | |
|2004 |305974 |167849 |138125 |823 |
| | |(54.86) |(45.11) | |
|2005 |324336 |178031 |146305 |822 |
| | |(54.89) |(45.11) | |
|2006 |322750 |176242 |146508 |831 |
| | |(54.69) |(45,39) | |
|2007 |322044 |174289 |147755 |848 |
| | |(54.12) |(45.88) | |
|2008 |333908 |166583 |167325 |1004 |
| | |(49.89) |(50.11) | |
|2009 |354482 |185131 |169351 |915 |
| | |(52.22) |(47.78) | |
|2010 |359463 |189122 |170341 |901 |
| | |(52.61) |(47.39) | |
|2011 |353759 |186870 |166889 |893 |
| | |(52.82) |(47.18) | |
|2012 |360473 |191129 |169344 |886 |
| | |(53.02) |(46.98) | |
|2013 |370000 |195226 |174774 |895” |
| | |(52.76) |(47.24) | |
23. The data furnished by the NCT of Delhi was contested on the ground
that it was collected from 50 major hospitals. The Court noticed that
there had really been no improvement with regard to the sex ratio. The
Court took note of the submissions of Mr. Gonsalves, learned senior counsel
for the petitioner and Mr. Parikh, learned counsel for the impleaded
respondent(s) and observed that under Section 16(2)(f)(ii) and (iii) there
should be eminent women activists from non-governmental oraganisations and
eminent gynaecologists and obstetricians or experts of stri-
roga or prasuti tantra to be the members and thought it apt to state that
there can be eminent women activists from non-governmental organizations,
eminent gynaecologists and obstetricians or experts of stri-roga or prasuti
tantra and eminent radiologists or sonologists but care has to be taken
that they do not have conflict of interest.
24. On 15.09.2015, the Court noted the submission of Ms. Anitha Shenoy,
learned counsel appearing for Dr. Sabu Mathew George, the newly impleaded
party, that the appropriate authorities are not following the mandate
enshrined under Rule 18A of the Rules. Keeping in view the language
employed in the said Rule, the Court directed that all the appropriate
authorities including the State, districts and sub-districts notified under
the Act shall submit quarterly progress report to the Government of India
through the State Government and maintain Form H for keeping the
information of all registrations readily available. The Court further
directed that the States shall file the compliance report pertaining to sub-
rule (6) of Rule 18A of the Rules and also directed counsel for the Union
of India to apprise the Court about the information received from the
various appropriate authorities.
25. On 17.11.2015 when the matter was taken up, the Court adverted to the
fact that the State of Odisha, as directed, had provided the Committee
relevant documents, especially the documents which are required for
eradicating the deficiencies pointed out by the Committee. Be it noted,
the Committee had earlier pointed out certain deficiencies. The State had
filed the documents in pursuance of the order of the Court and the
Committee had filed report pertaining to the State of Odisha. Paragraph 4
of the report reads as follows:-
“4. The State of Odisha had cited the data on Sex Ratio at Birth from the
Civil Registration of births of State. State Provided the relevant data and
C.D. M.O, Odisha. There are 314 rural registration units & 100 urban
registration units I 30 districts in Odisha State. All the data is based on
the records of civil registration system. The Sex Ratio at Birth (SRB) data
for the year 2013 submitted in the affidavit is 886 whereas as per the
records submitted by the State data for the same period is 890. The
representatives of the State clarified that in the affidavit, the figures
were provisional.”
26. Mr. Gonsalves, learned senior counsel had also filed a chart
containing 'District-wise Sex Ratio at Birth of Odisha State' commencing
from the year 2010 to 2014. The said chart is reproduced below:-
“District wise sex ratio at birth of Odisha State
|Sl.No |Name of the |2010 |2011 |2012 |2013 |2014 |
| |District | | | | | |
|1 |2 |3 |4 |5 |6 |7 |
|1 |Angul |894 |900 |879 |890 |904 |
|2 |Balasore |923 |891 |912 |870 |870 |
|3 |Argarh |923 |889 |913 |891 |913 |
|4 |Bhadrak |923 |891 |876 |883 |875 |
|5 |Bolangir |945 |930 |933 |950 |939 |
|6 |Boudh |983 |957 |936 |934 |918 |
|7 |Cuttack |860 |874 |860 |854 |843 |
|8 |Deogarh |896 |954 |958 |954 |938 |
|9 |Dhenkanal |856 |833 |850 |845 |849 |
|10 |Gajapati |875 |930 |927 |890 |892 |
|11 |Ganjam |902 |880 |867 |813 |794 |
|12 |Jagatsinghpur |912 |905 |842 |777 |852 |
|13 |Jajpur |863 |876 |828 |824 |823 |
|14 |Jharsuguda |859 |902 |882 |908 |878 |
|15 |Kalahandi |888 |935 |968 |989 |942 |
|16 |Kandhamal |912 |943 |950 |962 |940 |
|17 |Kendrapara |881 |836 |828 |734 |705 |
|18 |Keonjhar |934 |923 |950 |965 |930 |
|19 |Khurda |892 |876 |884 |885 |842 |
|20 |Koraput |935 |943 |960 |945 |942 |
|21 |Malkangiri |948 |947 |993 |942 |935 |
|22 |Mayurbhanj |955 |934 |936 |931 |933 |
|23 |Nawarangpur |962 |932 |936 |979 |965 |
|24 |Nayagarh |874 |859 |774 |844 |811 |
|25 |Nuapada |945 |956 |955 |909 |1055 |
|26 |Puri |933 |888 |874 |873 |854 |
|27 |Rayagada |955 |954 |939 |931 |945 |
|28 |Sambalpur |906 |918 |908 |891 |903 |
|29 |Subarnapur |940 |934 |946 |939 |965 |
|30 |Sundargarh |911 |892 |865 |897 |906 |
| |Odisha |911 |902 |896 |886 |889” |
Learned counsel submitted that when the sex ratio reduces below 900,
there is a signal of a social disaster. He had pointed out that there were
many districts where it had fallen below 900 and drawn the attention of the
Court to two districts, namely, Kendrapara and Ganjam to highlight that the
sex ratio had gone down to 705 and 794 in 2014. Be it stated, the two
districts were only referred to highlight how the sex ratio had fallen in
the year 2014 than what it was in 2010.
27. We have adumbrated the history of the litigation, the directions
issued by this Court from time to time and adverted to how this Court has
appreciated the impact of sex ratio on a civilized society having regard to
the legislative intendment under the Act, the suggestions given by the
learned counsel for the petitioner, the verification done by the Monitoring
Committee, and the crisis the country is likely to face if the obtaining
situation is allowed to prevail. As is manifest, this Court had issued
directions from 2001 onwards in different writ petitions and in the instant
writ petition, as noticed earlier, number of directions were issued and,
thereafter, certain clarifications were made. The narration shows the
concern.
28. It needs no special emphasis that a female child is entitled to enjoy
equal right that a male child is allowed to have. The constitutional
identity of a female child cannot be mortgaged to any kind of social or
other concept that has developed or is thought of. It does not allow any
room for any kind of compromise. It only permits affirmative steps that
are constitutionally postulated. Be it clearly stated that when rights are
conferred by the Constitution, it has to be understood that such rights are
recognised regard being had to their naturalness and universalism. No one,
let it be repeated, no one, endows any right to a female child or, for that
matter, to a woman. The question of any kind of condescension or
patronization does not arise.
29. When a female foetus is destroyed through artificial means which is
legally impermissible, the dignity of life of a woman to be born is
extinguished. It corrodes the human values. The Legislature has brought a
complete code and it subserves the constitutional purpose. We may briefly
refer to the scheme of the Act and the Rules framed thereunder. Section 2
of the Act is the dictionary clause and it defines “foetus”, “Genetic
Counselling Centre”, “Genetic Clinic”, “Genetic Laboratory”, “pre-natal
diagnostic procedures”, “pre-natal diagnostic techniques”, “pre-natal
diagnostic test”, “sex selection”, “sonologist or imaging specialist”.
Section 3 provides for Regulation of Genetic Counselling Centers, Genetic
Laboratories and Genetic Clinics. Section 3A imposes prohibition of sex-
selection. Section 3B prohibits the sale of ultrasound machine, etc., to
persons, laboratories, clinics, etc., not registered under the Act.
Section 4 regulates pre-natal diagnostic techniques. Section 5
stipulates written consent of pregnant woman and prohibition of
communicating the sex of foetus. Section 6 prohibits determination of sex.
Chapter IV of the Act deals with the Central Supervisory Board. Sections
7 – 16A deal with the constitution of the Board, meetings of the Board,
functions of the Board, which includes reviewing and monitoring
implementation of the Act and Rules made thereunder. Section 16A commands
the States and Union Territories to have a Board to be known as the State
Supervisory Board or the Union Territory Supervisory Board, as the case may
be, to carry out the functions enumerated therein. Chapter V provides for
the Appropriate Authority and Advisory Committee. Sub-section (4) of
Section 17 deals with the powers of the Appropriate Authority. The said
provision being significant is extracted hereunder:-
“(4) the Appropriate Authority shall have the following functions, namely –
(a) to grant, suspend or cancel registration of a Genetic Counselling
Centre, Genetic Laboratory or Genetic Clinic;
(b) to enforce standards prescribed for the Genetic Counselling Centre,
Genetic Laboratory and Genetic Clinic;
(c) to investigate complaints of breach of the provisions of this Act or
the rules made thereunder and take immediate action;
(d)to seek and consider the advice of the Advisory Committee, constituted
under sub-section (5), on application for registration and on complaints
for suspension or cancellation of registration;
(e) to take appropriate legal action against the use of any sex selection
technique by any person at any place, suo motu or brought to its notice and
also to initiate independent investigations in such matter;
(f) to create public awareness against the practice of sex selection or pre-
natal determination of sex;
(g) to supervise the implementation of the provisions of the Act and rules;
(h) to recommend to the Board and State Boards modifications required in
the rules in accordance with changes in technology or social conditions;
(i) to take action on the recommendations of the Advisory Committee made
after investigation of complaint for suspension or cancellation of
registration.”
30. Section 17A enumerates the powers of the Appropriate Authorities.
The said provision reads as follows:-
“17A. Powers of Appropriate Authorities.- The Appropriate Authority shall
have the powers in respect of the following maters, namely:-
(a) summoning of any person who is in possession of any information
relating to violation of the provisions of this Act or the rules made
thereunder;
(b) production of any document or material object relating to clause (a);
(c) issuing search warrant for any place suspected to be indulging in sex
selection techniques or pre-natal sex determination; and
(d) any other matter which may be prescribed.”
31. Section 18 deals with the registration of Genetic Counselling
Centres, Genetic Laboratories or Genetic Clinics. Sections 19 and 20
provide for certificate of registration and cancellation or suspension of
registration. Chapter VII deals with offences and penalties. Section 22
stipulates prohibition of advertisement relating to pre-
conception and pre-natal determination of sex and punishment for
contravention and Section 23 deals with offences and penalties. Section 24
which has been brought into the Act by way of an amendment with effect from
14.02.2003 states with regard to presumption in the case of
conduct of pre-natal diagnostic techniques. Section 26 provides for
offences by companies. Section 28 provides that no court shall take
cognizance of an offence under the Act except on a complaint made by the
Appropriate Authority concerned, or any officer authorized in this behalf
by the Central Government or State Government, as the case may be, or the
Appropriate Authority; or a person who has given notice of not less than
fifteen days in the manner prescribed. Section 29 occurring in Chapter
VIII which deals with miscellaneous matters provides for maintenance of
records. Section 30 empowers the appropriate authority in respect of search
and seizure of records. The rule framed under Section 32 of the Act is not
comprehensive. Various Forms have been provided to meet the requirement by
the Rules. On a perusal of the Rules and the Forms, it is clear as crystal
that attention has been given to every detail.
32. Having stated about the scheme of the Act and the purpose of the
various provisions and also the Rules framed under the Act, the dropping of
sex ratio still remains a social affliction and a disease.
33. Keeping in view the deliberations made from time to time and regard
being had to the purpose of the Act and the far reaching impact of the
problem, we think it appropriate to issue the following directions in
addition to the directions issued in the earlier order:-
(a) All the States and the Union Territories in India shall maintain a
centralized database of civil registration records from all registration
units so that information can be made available from the website regarding
the number of boys and girls being born.
(b) The information that shall be displayed on the website shall contain
the birth information for each District, Municipality, Corporation or Gram
Panchayat so that a visual comparison of boys and girls born can be
immediately seen.
(c) The statutory authorities if not constituted as envisaged under the Act
shall be constituted forthwith and the competent authorities shall take
steps for the reconstitution of the statutory bodies so that they can
become immediately functional after expiry of the term. That apart, they
shall meet regularly so that the provisions of the Act can be implemented
in reality and the effectiveness of the legislation is felt and realized in
the society.
(d) The provisions contained in Sections 22 and 23 shall be strictly
adhered to. Section 23(2) shall be duly complied with and it shall be
reported by the authorities so that the State Medical Council takes
necessary action after the intimation is given under the said provision.
The Appropriate Authorities who have been appointed under Sections 17(1)
and 17(2) shall be imparted periodical training to carry out the functions
as required under various provisions of the Act.
(e) If there has been violation of any of the provisions of the Act or the
Rules, proper action has to be taken by the authorities under the Act so
that the legally inapposite acts are immediately curbed.
(f) The Courts which deal with the complaints under the Act shall be fast
tracked and the concerned High Courts shall issue appropriate directions in
that regard.
(g) The judicial officers who are to deal with these cases under the Act
shall be periodically imparted training in the Judicial Academies or
Training Institutes, as the case may be, so that they can be sensitive and
develop the requisite sensitivity as projected in the objects and reasons
of the Act and its various provisions and in view of the need of the
society.
(h) The Director of Prosecution or, if the said post is not there, the
Legal Remembrancer or the Law Secretary shall take stock of things with
regard to the lodging of prosecution so that the purpose of the Act is
subserved.
(i) The Courts that deal with the complaints under the Act shall deal with
the matters in promptitude and submit the quarterly report to the High
Courts through the concerned Sessions and District Judge.
(j) The learned Chief Justices of each of the High Courts in the country
are requested to constitute a Committee of three Judges that can
periodically oversee the progress of the cases.
(k) The awareness campaigns with regard to the provisions of the Act as
well as the social awareness shall be undertaken as per the direction No
9.8 in the order dated March 4, 2013 passed in Voluntary Health Association
of Punjab (supra).
(l) The State Legal Services Authorities of the States shall give emphasis
on this campaign during the spread of legal aid and involve the para-legal
volunteers.
(m) The Union of India and the States shall see to it that appropriate
directions are issued to the authorities of All India Radio and Doordarshan
functioning in various States to give wide publicity pertaining to the
saving of the girl child and the grave dangers the society shall face
because of female foeticide.
(n) All the appropriate authorities including the States and districts
notified under the Act shall submit quarterly progress report to the
Government of India through the State Government and maintain Form H for
keeping the information of all registrations readily available as per sub-
rule 6 of Rule 18A of the Rules.
(o) The States and Union Territories shall implement the Pre-conception and
Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) (Six Months
Training) Rules, 2014 forthwith considering that the training provided
therein is imperative for realising the objects and purpose of this Act.
(p) As the Union of India and some States framed incentive schemes for the
girl child, the States that have not framed such schemes, may introduce
such schemes.
34. Before parting with the case, let it be stated with certitude and
without allowing any room for any kind of equivocation or ambiguity, the
perception of any individual or group or organization or system treating a
woman with inequity, indignity, inequality or any kind of discrimination is
constitutionally impermissible. The historical perception has to be given a
prompt burial. Female foeticide is conceived by the society that definitely
includes the parents because of unethical perception of life and nonchalant
attitude towards law. The society that treats man and woman with equal
dignity shows the reflections of a progressive and civilized society. To
think that a woman should think what a man or a society wants her to think
is tantamounts to slaughtering her choice, and definitely a humiliating
act. When freedom of free choice is allowed within constitutional and
statutory parameters, others cannot determine the norms as that would
amount to acting in derogation of law. Decrease in the sex ratio is a sign
of colossal calamity and it cannot be allowed to happen. Concrete steps
have to be taken to increase the same so that invited social disasters do
not befall on the society. The present generation is expected to be
responsible to the posterity and not to take such steps to sterilize the
birth rate in violation of law. The societal perception has to be
metamorphosed having respect to legal postulates.
35. Now, we shall advert to the prayers in Writ Petition (Civil) No. 575
of 2014. The writ petition has been filed by Indian Medical Association
(IMA). It is contended that Sections 3-A, 4, 5, 6, 7, 16, 17, 20, 23, 25,
27 and 30 of the Act and Rules 9(4), 10 & Form “F” (including foot-note),
which being the subject matter of concern in the instant writ petition, are
being misused and wrongly interpreted by the concerned authorities thereby
causing undue harassment to the medical professionals all over the country
under the guise of the ‘so-called implementation’. It is also urged that,
implementation of steps and scrutiny of records was started at large scale
all over the country and lot of anomalies were found in records maintained
by doctors throughout the country. It is however pertinent to mention here
that the majority of the defaults were of technical nature as they were
merely minor and clerical errors committed occasionally and inadvertently
in the filing of Form “F”. It is also put forth that the Act does not
classify the offences and owing to the liberal and vague terminology used
in the Act, it is thrown open for misuse by the concerned implementing
authorities and has resulted into taking of cognizance of non-bailable
(punishable by three years) offences against doctors even in the cases of
clerical errors, for instance non-mentioning of N.A. (Not Applicable) or
leaving of any column in the concerned Form “F” as blank. It is further
submitted that the said unfettered powers in the hands of implementing
authority have resulted into turning of this welfare legislation into a
draconian novel way of encouraging demands for bribery as well as there is
no prior independent investigation as mandated under Section 17 of the Act
by these Authorities. It is also set forth that the Act states merely that
any contravention with any of the provisions of the Act would be an offence
punishable under Section 23(1) of the said Act and further all offences
under the Act have been made non-bailable and non-compoundable and the
misuse of the same can only be taken care of by ensuring that the
Appropriate Authority applies its mind to the fact of each case/complaint
and only on satisfaction of a prima facie case, a complaint be filed rather
than launching prosecution mechanically in each case. With these averments,
it has been prayed for framing appropriate guidelines and safeguard
parameters, providing for classification of offences as well, so as to
prohibit the misuse of the PCPNDT Act during implementation and to read
down this Sections 6, 23, 27 of PCPNDT Act. That apart, it has been prayed
to add certain provisos/exceptions to Sections 7, 17, 23 and Rule 9 of the
Rules.
36. In our considered opinion, whenever there is an abuse of the process
of the law, the individual can always avail the legal remedy. As we find,
neither the validity of the Act nor the Rules has been specifically
assailed in the writ petition. What has been prayed is to read out certain
provisions and to add certain exceptions. We are of the convinced view
that the averments of the present nature with such prayers cannot be
entertained and, accordingly, we decline to interfere.
37. In the result, Writ Petition (Civil) No. 349 of 2006 stands disposed
of in terms of the directions issued by us and Writ Petition (Civil) No.
575 of 2014 stands dismissed. In the facts and circumstances of the case,
there shall be no order as to costs.
.............................J.
[Dipak Misra]
............................ J.
[Shiva Kirti Singh]
New Delhi;
November 8, 2016
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[1] (1997) 7 SCC 110
[2] (2001) 5 SCC 577
[3] (2003) 8 SCC 398
[4] (2013) 4 SCC 1
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